Revised Form 4 - Mediation Under SB 586 & MHCO FORM 4 (Mediation Policy Addendum)

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Senate Bill 586 becomes law on January 1, 2020. It amends several landlord-tenant laws, but for purpose of this article, we will focus on the new mediation laws it enacted.

 

Participation. If any landlord or tenant initiate a request for mediation, participation is mandatory. 

 

Types of Disputes Subject to Mediation. Generally, they relate to landlord or tenant compliance with the rental agreement or with the provisions of  ORS Chapter 90 (Oregon’s Residential Landlord-Tenant Laws). Specifically, they may include the following: 

  • Landlord or tenant conduct within the facility; and
  • The modification of a rule or regulation under ORS90.610.

 

Types of Disputes Excluded From Mediation.Unless all parties agree otherwise, nopartymayinitiatemediationfor:

  • Facility closures consistent with ORS90.645 or 90.671;
  • Facility sales consistent with ORS 90.842 to 90.850;
  • Rent increases consistent with ORS 90.600;
  • Rent payments or amounts owed;
  • Tenant violations alleged in termination notices given under ORS 90.394 (Nonpayment of Rent), and non-curable notices under 90.396 (24-Hour Notices) or 90.630(8) (3-Strike Notices);
  • Unauthorized person in possession under ORS 90.403;
  • Unless initiated by the victim, dispute involving allegations of domestic violence, sexual assault or stalking or a dispute between the victim and the alleged perpetrator; and
  • Disputes arising after the termination of the tenancy, including under ORS 90.425 (Personal Property Abandonment), 90.675 (Manufactured Home Abandonment) or 105.161 (Writs of Execution).

 

Parks Required to Have a Mediation Policy.It must include the following:  

  • The process and format to initiate mediation;
  • The names and contact information, including thephone number and website address, for mediation services available through the referral program provided by the Housing and Community Services Department established under ORS 446.543 (2) and any other no-cost mediation service acceptable to thelandlord;
  • Information explaining the following requirements:
    • It may be initiated by the landlord or tenant contacting the Housing and Community Services Department in their required format;
    • It may not resolve any matters except by the agreement of all parties; [Note: we interpret this to mean that neither party can be compelled to reach agreement on any matter against their consent. However, we do not interpret this to mean that both parties must agree in advance as to which topics will go to mediation (assuming they are not otherwise beyond the scope of the law)].
    • All communications from all parties are held strictly confidential and may not be used in any legal proceedings. 
    • Mediation may be used toresolve:
      • Disputes between the landlord and one or more tenants,initiated by any party; and 
      • Disputes between any two or more tenants, initiated only by the landlord.
    • A party may designate any person, including a non-attorney, to represent their interests, provided that the designee must have the authority to bind that party to any resolution of thedispute;
    • Must comply with any other provisions as the Housing and Community Services Department may require byrule; and
    • Parties must participate in mediation (a) by making a good faith effort to schedule mediation within 30 days after it is initiated, (b) attending and participating in mediation and (c) cooperating with reasonable requests of the mediator.

 

MHCO Form No. 4 (Mediation Policy).  This form summarizes Senate Bill 586, and should be given to all new residents after January 1, 2020.  A landlord may unilaterally amend a rental agreement or facility rules and regulationstoSB 586.  PCQ Comment: MHCO has a form (No. 4) available to its members to make the unilateral amendment for existing residents. If your current policy conflicts with the new law, or you simply want to update it, we suggest sending the unilateral amendment to current residents. For new residents, Form 4 should become a part of their rental agreement, rules, and statement of policy.

 

Pending Claims.After mediation has been initiated and while it is on going,any statute of limitations related to the dispute is suspended (aka “tolled”). Additionally, after the mediation has been initiated, a party may not file a legal action related to the dispute, including an action for possession under ORS105.110 (“FED”).

 

Continuing Duties During Mediation. The tenant must continue paying their rent. However, receipt of such payment is not subject to landlord waiver under ORS 90.412(2) so long as it is refunded (if appropriate) within 10 days following the conclusion ofmediation.

 

Miscellaneous.  SB 586 does not require any party to:

  • Reachanagreementonanyof the issues submitted to mediation;
  • Participate in more than one mediation session or participate for an unreasonable lengthoftimeinasession;or
  • Waive or forgo any rights or remedies or the use of any other available informal dispute resolutionprocess.
  • A mediator in the mandatory mediation must notify the Housing and Community Services Department as to whether the dispute was resolved - but may not provide the department with the contents of any resolution;
  • If a party refuses to participate in good faith in a requested mediation or uses mediation to harass another party, the other party:
    • Has a defense to a claim related to the subject of the dispute for which mediation was sought;and
    • Is entitled to damages of one month’s rent against that party.

 

PCQ Note:Although unrelated to mediation, SB 586 also provides that the Housing and Community Services Department shall award grants to persons to provide legal representation to low-income facility tenants in addressing disputes involving legal matters arising under ORS Chapter 90;

 


 

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